Thursday, October 16, 2014

A Right to Euthanasia?

For both principled and practical reasons, the Supreme Court of Canada should maintain the country’s legal ban on euthanasia and physician-assisted suicide.

John Keown

By John Keown

Yesterday, the Supreme Court of Canada heard oral argument in a landmark case. Its decision will have ramifications south of the border and well beyond.

The question in Carter v. Attorney General of Canada is whether there is a right under the Canadian Charter of Rights and Freedoms to voluntary, active euthanasia (VAE) and physician-assisted suicide (PAS). Do patients have a right to lethal injections and lethal prescriptions? The case is largely a rerun of Rodriguez v. British Columbia, a 1993 case in which the Canadian Supreme Court held (5-4) that there is no right to physician-assisted suicide under the Charter.

In Carter, the trial judge in British Columbia, Justice Lynn Smith, decided that she was entitled to reopen the question. Why? Because she thought the “proportionality” test in Canadian constitutional law had changed and because of the empirical evidence that has emerged from the Netherlands and Belgium (which permit VAE) and from Oregon (which permits PAS).

She concluded, in light of that evidence, that the risks of decriminalization “can be very largely avoided through carefully-designed, well-monitored safeguards,” and that a complete ban on VAE and PAS was disproportionate. She judged that in order to protect the vulnerable it was disproportionate to ban VAE and PAS for everyone, and that the blanket ban infringed sections 7 and 15 of the Charter.

The Attorney General of Canada appealed. British Columbia’s Court of Appeal rejected Justice Smith’s view that the proportionality test had changed, and held that she was therefore bound by Rodriguez. The plaintiffs appealed to the Supreme Court.

The Supreme Court should dismiss the appeal and uphold Canada’s ban on euthanasia and physician-assisted suicide. Leaving aside the proportionality test, on which the Court of Appeal based its decision, there are at least four grave flaws in Justice Smith’s judgment.

The Inviolability of Life

First, her judgment failed accurately to understand, let alone affirm, the fundamental moral principle of the “inviolability of life.” This principle, which has historically and profoundly shaped Western criminal law, human rights instruments, and medical ethics, prohibits the intentional killing of the innocent. (The principle was historically referred to as the “sanctity of life.” The “inviolability of life” provides a philosophical account.)

Incorporating the philosophical idea of “double effect,” the inviolability of life draws a bright line between, on the one hand, intentionally administering a lethal drug to end the life of a patient (euthanasia) and, on the other, intentionally administering a drug such as morphine to alleviate pain, merely foreseeing that, as a side effect, life will be shortened. (Properly titrated, palliative drugs do not, in fact, shorten life.)

The inviolability principle also distinguishes between, on the one hand, intentionally assisting suicide, as by writing a prescription for lethal drugs, and, on the other, withholding or withdrawing treatment at the patient’s request because it is futile or too burdensome to the patient, merely foreseeing that, as a side effect, the patient will die sooner.

As these distinctions show, the inviolability principle does not advocate preserving life at all costs.

The key ethical and legal distinction between intending death and merely foreseeing death was affirmed in Rodriguez. Delivering the judgment of the majority, Justice Sopinka wrote that “distinctions based on intent are important, and in fact form the basis of our criminal law.” The distinction has also been upheld by the Supreme Court of the United States, and by the Law Lords in England. It has long been embraced, too, by professional medical ethics. Remarkably, Justice Smith concluded that Canadian criminal law rejects the distinction.

Discrimination against the Disabled

Justice Smith ruled that the present law, prohibiting assistance in suicide but not suicide itself, discriminates against those too disabled to commit suicide without assistance. However, suicide was decriminalized not to help the suicidal commit suicide, but to help them not to. Legislatures decided, reasonably, that the suicidal were best dealt with by psychiatry, not punishment. As Justice Sopinka noted: “suicide was seen to have its roots and its solutions in sciences outside the law. . . .” Justice Smith, by contrast, appears to have confused decriminalization with approval.

And, as we shall see in our consideration of the next flaw, the case even for voluntary euthanasia rests heavily on the judgment that there are certain lives that are not “worth living,” that certain people would be “better off dead.” As the disability rights groups, who are in the vanguard of opposition to legalization, recognize, it is the legalization of euthanasia that discriminates against them, not its prohibition. Those with disabilities see more clearly than many that, once society endorses the judgment that certain lives are not worth living, the disabled will be prime candidates for this designation.

The Logical Argument: Autonomy and Beneficence

A third flaw in Justice Smith’s judgment is its evasion of the “logical” slippery slope argument. This argument runs that condonation of euthanasia on request (“voluntary” euthanasia) logically requires condonation of euthanasia of the incompetent (“non-voluntary” euthanasia).

Respect for autonomy is at the forefront of the case for legalization (as it was in the plaintiffs’ arguments, and in the judgment, in Carter). But no responsible doctor would euthanize a patient merely because the patient autonomously requested it. The doctor would agree only if the doctor judged that death would indeed benefit the patient, because the patient’s life was no longer “worth living.”

Moreover, arguments for relaxation of the law limit euthanasia to those with certain conditions, such as “suffering” to a specified degree; only some autonomous requests would be eligible, not others. The standard ethical case for voluntary euthanasia rests, then, not just on respect for autonomy, but on beneficence, the doctor’s duty to benefit the patient, typically by putting an end to his suffering.

But, if it is ethical for a doctor to end the life of a suffering patient who requests it, why is it not, logically, ethical for a doctor to end the suffering of a patient who cannot? Why deny incompetent patients the same benefit? True, as there is no autonomous request, respect for autonomy is not in play. But beneficence is.

Small wonder that the plaintiffs’ two lead ethical experts in Carter endorse not only voluntary but also non-voluntary euthanasia (another significant fact omitted from Justice Smith’s judgment). Small wonder too that the Dutch courts, which began by endorsing voluntary euthanasia in 1984, proceeded in 1996 to endorse lethal injections for disabled infants.

This powerful—indeed, unanswerable—logical argument is obviously relevant to the question whether voluntary euthanasia should be legalized. Yet Justice Smith concluded that it was irrelevant because the plaintiffs were arguing only for a right to voluntary euthanasia!

The Practical Argument: Defining and Enforcing Restrictions

The “practical” slippery slope argument is more familiar to many than its logical sister. Individually, each is formidable. Combined, they are even more so.

The practical argument runs that, given the intractable problems of draftingand enforcing any exceptions to the current blanket ban on killing, control cannot be made effective. The argument challenges euthanasia proponents to show that their “safeguards” will work, to ensure that only those who “voluntarily” seek death, only those who are “suffering unbearably” with no alternative, are euthanized. They have, for scores of years, failed this challenge.

Questions they must answer include: How is any exception to be defined? As involving a “voluntary” request? What does that mean? Does it, for example, include cases where the doctor suggests euthanasia to the patient (as is allowed in the Netherlands)? Or where patients request death because they feel a burden to others (a not uncommon reason in Oregon)?

And will it require “unbearable suffering”? If so, what does that mean? Physical, mental, perhaps even emotional suffering? There is now widespread support in the Netherlands for euthanizing elderly people experiencing so-called “existential” suffering, who are “tired of life.” Will that ground qualify? Will an old man who is suffering unbearably because he knows his children want him dead so they can inherit his money, qualify? Lest the question be thought fanciful, when I asked a leading Dutch practitioner of euthanasia whether he would rule out such a request, he replied that he would not. (And that was twenty-five years ago.)

Further, how are the authorities to ensure that the guidelines creating the exception, however defined, are properly enforced? To ensure, for example, that patients made a truly autonomous request, and were suffering unbearably, and that doctors duly reported all cases?

Empirical Evidence of Effective Control?

We will recall that Justice Smith found that the empirical evidence from the Netherlands, Belgium, and Oregon showed that the risks “can be very largely avoided through carefully-designed, well-monitored safeguards.” This finding is, to put it mildly, unsupported by that evidence.

That evidence included several Dutch government-sponsored surveys showing that, since the Dutch Supreme Court relaxed the law in 1984, Dutch doctors have admitted not only failing to report thousands of cases to the authorities, but administering lethal injections to thousands of patients without their explicit request. In short, there has been widespread breach of key Dutch guidelines, and with virtual impunity. The evidence from Belgium has disclosed the same two flaws: widespread non-voluntary euthanasia and non-reporting.

As for Oregon, we lack anything like the comprehensive surveys carried out by the Dutch, which makes any claim that its safeguards have proved effective largely speculative. And the safeguards in Oregon are even laxer than those in the Netherlands and Belgium, lacking even (the largely pro forma) review by committee. Professor Alexander Capron has accurately described the Oregon safeguards as “largely illusory.”

For good measure, the Dutch euthanasia regime was criticized by the United Nations Human Rights Committee in 2001 and again in 2009. This piece of evidence, which is clearly of some relevance, was laid before Justice Smith. Her judgment (of over 1400 paragraphs) did not find it worthy of mention.

A subsequent court case, from Ireland, confirms that Justice Smith's finding about the feasibility of effective safeguards was mistaken. In Fleming v. Ireland (a case similar to Carter), three judges of the Irish Divisional Court considered the same empirical evidence relied on by Justice Smith. In a judgment noting the “strikingly high” incidence of non-voluntary euthanasia in the Netherlands and Belgium, the judges unanimously concluded: “the Court cannot at all agree with [Justice Smith’s] finding that the risks inherent in legally permitted assisted death have not materialized in jurisdictions such as Belgium and the Netherlands.” The Irish Court, rejecting the challenge to the Irish law, preferred the reasoning of Justice Sopinka in Rodriguez.

In conclusion, the Supreme Courts of Canada, the United States, England, and Ireland have held that there is no right to VAE or PAS and that the question whether they should be permitted is a matter for legislatures. They are surely right: euthanasia is paradigmatically suited for legislative determination. And legislatures, together with the expert committees they have appointed to consider the issue, have overwhelmingly concluded that the law should not be relaxed.

Nothing in Justice Smith’s judgment gives the Supreme Court of Canada grounds for departing from its previous decision. Indeed, her reasons for departing from Rodriguez are so flawed they simply confirm its soundness.